The Victorian Government established the Royal Commission on 13 December 2018, after the High Court of Australia upheld the decisions of Victorian courts to allow the Director of Public Prosecutions (DPP) to disclose to a group of convicted persons that Victoria Police had used former defence barrister, Ms Nicola Gobbo, as a human source.
The High Court described the conduct of Ms Gobbo and Victoria Police as a corruption of the criminal justice system:
[Ms Gobbo’s] actions in purporting to act as counsel for the Convicted Persons while covertly informing against them were fundamental and appalling breaches of [her] obligations as counsel to her clients and of [her] duties to the court. Likewise, Victoria Police were guilty of reprehensible conduct in knowingly encouraging [Ms Gobbo] to do as she did and were involved in sanctioning atrocious breaches of the sworn duty of every police officer to discharge all duties imposed on them faithfully and according to law without favour or affection, malice or ill-will. As a result, the prosecution of each Convicted Person was corrupted in a manner which debased fundamental premises of the criminal justice system.1
Police are not entitled to pursue suspects at any cost—they must comply with the law and use their powers in a fair and ethical way. Additionally, lawyers cannot freely hand over information about their clients to police— if they do so, they risk breaching their professional obligations and undermining the criminal justice system.
When the State prosecutes, convicts and punishes a citizen, it uses considerable powers, including the power to deprive them of their liberty. As a check on those powers, there are well-established rules and principles, such as those now enshrined in the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter), to ensure that as far as possible, criminal investigations and court processes are fair and balanced. These rules and principles apply no matter how serious the crime, and regardless of the accused person’s identity.
The community might question the need to scrutinise and denounce seemingly effective intelligence-gathering by the police. The fact that Victoria Police was able, with Ms Gobbo’s assistance, to secure convictions against people accused of committing serious violent and drug-related offences could be seen as a positive outcome for the community.
That view, while understandable, overlooks the far-reaching and detrimental consequences of the conduct of Ms Gobbo and Victoria Police. During the Commission’s inquiry, two of Ms Gobbo’s former clients had their convictions overturned. Both had been deprived of their liberty, spending many years in prison after unfair trials. Numerous other people are seeking to appeal their convictions. There have been many court proceedings and inquiries, at great public expense, and there are likely to be more. These events have put at risk the integrity of the criminal justice system, harmed the reputation of the legal profession, and diminished public confidence in Victoria Police.
The Commission was established to find out how and why these events occurred, and to make sure they can never happen again.
In line with this objective, the Commission recommends that the conduct of Ms Gobbo and relevant current and former Victoria Police officers be referred to a Special Investigator, to consider whether there is sufficient evidence to bring criminal charges against them, and/or disciplinary charges in the case of current Victoria Police officers. It also recommends a suite of reforms to increase accountability and transparency in Victoria Police’s use and management of human sources; establish a model of independent external oversight; reinforce police disclosure obligations; and improve aspects of legal profession regulation. Finally, it proposes governance and monitoring measures to make sure that Victoria Police and other relevant agencies implement these reforms in an effective and timely way.
The Commission’s recommendations aim to enable and support Victoria Police in its work to protect the community from criminal activity and protect the rights of individual citizens, while strengthening the operation of, and public confidence in, Victoria’s criminal justice system.
1 AB (a pseudonym) v CD (a pseudonym); EF (a pseudonym) v CD (a pseudonym) (2018) 362 ALR 1, 4  (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ). The term ‘Convicted Persons’ refers to seven people who were represented by Ms Gobbo and were convicted of serious criminal offences.
The Commission’s task
The Commission had both an investigative task and a policy reform task. Its terms of reference are set out in Box 1.
BOX 1: THE COMMISSION’S TERMS OF REFERENCE
The Commission was appointed to inquire into and report on:
The scope of the inquiry
In line with its terms of reference, the Commission’s inquiry focused on some specific aspects of Victoria Police’s role, responsibilities and functions in the criminal justice system, including the use of human sources subject to legal obligations of confidentiality or privilege, the use of information from such sources in criminal proceedings, and how cases may have been affected by the conduct of Ms Gobbo and Victoria Police.
What are human sources?
Also known as police ‘informants’ or ‘informers’, human sources are people registered to covertly (secretly) supply information about a crime or people involved in criminal activity to police and other law enforcement agencies, usually on an ongoing basis, with the expectation that their identity will be protected. Human sources can also be ‘tasked’; that is, given an assignment or instruction by police to gather information about criminal activity. This, combined with the covert nature of their informing, is what generally distinguishes human sources from other people who give information to police, such as witnesses or victims of crime. The information that human sources provide can be critical to the ability of police to combat serious and organised crime.
It is widely accepted that the identity of a human source must be kept confidential to protect the safety of the source and those close to them, and to make sure that people remain willing to provide information to police.
Victoria Police has produced internal guidance for its officers about the use of human sources since 1986. The current policy, the Victoria Police Manual—Human Sources (Human Source Policy) came into effect in May 2020 and sets out a range of requirements for managing human sources.
The police officers who act as the primary point of contact with human sources are called ‘handlers’. They are typically supervised by more senior police officers, including ‘controllers’, who are responsible for direct supervision of the handler–human source relationship.
The human source management process typically involves the following key stages or elements: assessment, registration, management, sharing of information and deactivation. These are displayed in Figure 1.
What are legal obligations of confidentiality or privilege?
Legal obligations of confidentiality and privilege are duties, based in law, that require people entrusted with confidential or privileged information not to disclose or disseminate that information.
Confidential information, in the context of the Commission’s inquiry, is information communicated in certain professional relationships (such as lawyer–client and doctor–patient relationships). It can also be information that a person acquires in the course of their occupation or employment and that they are legally obliged to keep secret (for example, some government employees). Privileged information is confidential information that attracts a higher level of protection. A court can order disclosure of confidential information in legal proceedings, but it cannot order disclosure of privileged information unless an exception applies. Privilege only applies to certain information, such as that sometimes shared by a person with their lawyer, doctor or counsellor, or with a journalist or cleric.
Part of the Commission’s role was to consider whether it was appropriate for Victoria Police to seek, acquire and use information from a human source, Ms Gobbo, who as a lawyer was legally obliged to keep that information confidential. Another part of the Commission’s role was to examine Victoria Police’s current processes for using and managing human sources who have legal obligations of confidentiality or privilege, or who otherwise have access to confidential or privileged information.
While it might be advantageous for police to have ready access to information that supports their investigations of criminal activity, other important and competing interests need to be considered. Permitting police to ‘override’ confidentiality protections enshrined in law risks interfering with a person’s right to and expectations of privacy. It also risks undermining the public interest in establishing professional relationships built on trust, and jeopardising prosecutions and convictions if the access to and/or use of the information is found to be illegal or improper.
What is disclosure in criminal proceedings?
In criminal proceedings, police and prosecuting agencies have a duty to disclose all material that is relevant, or potentially relevant, to an accused person’s case. This includes material on which the prosecution intends to rely in its case against the accused person, and material that may undermine the prosecution case or help the accused person’s case. The duty of disclosure is fundamental to a person’s right to a fair trial.
As part of this duty, the prosecution may need to disclose to an accused person how the evidence against them was obtained. If the case against an accused person is based on information provided by a human source, however, the identity of the human source will typically not be disclosed. This is because, in court proceedings, the identity of human sources is generally protected by public interest immunity (PII).
PII is a rule of evidence and a principle under the common law where the State seeks to withhold relevant information on the basis that its production or disclosure would be contrary to the public interest. Only a court can determine PII claims, and the information will only be protected by PII if the court determines that the public interest in withholding the information (for example, to protect the identity of a human source) outweighs other public interests (for example, to provide the accused person with all evidence relevant to their case). If the court determines that the PII claim is made out, the material is not disclosed to an accused person and cannot become evidence in the case.
In the cases of Ms Gobbo’s clients and other people she informed on, her status as a human source was not disclosed to the court or the accused persons at the time of their prosecutions.
In the court proceedings related to the DPP’s proposed disclosure to the convicted persons represented by Ms Gobbo, the Victorian courts and the High Court concluded that it was not in the public interest to keep her identity as a human source confidential. The courts determined that, because of the egregious actions of Ms Gobbo and Victoria Police officers, the public interest in disclosing the information to the convicted persons outweighed the public interest in protecting Ms Gobbo’s identity as a human source.
What is an affected case?
To identify cases that may have been affected by Ms Gobbo’s conduct as a human source, the Commission interpreted the phrase ‘may have been affected’ to mean that the conduct in question could have caused someone to be convicted in circumstances where there was a substantial miscarriage of justice. Circumstances that may constitute a substantial miscarriage of justice include when there has been a departure from or interference with the rules, principles or processes that underpin the integrity of the criminal justice system, and the accused person has therefore been deprived of a fair trial. Various factors—including errors or omissions in a trial or in evidence-gathering processes, failure to disclose relevant material to an accused person, or improper conduct of lawyers or police officers—can give rise to a substantial miscarriage of justice. This can occur even if the case against an accused person is considered to be a very strong one, if the process leading to the conviction was unfair.
While the Commission focused on cases that resulted in convictions or findings of guilt, it is important to acknowledge that Ms Gobbo’s conduct may have also affected people who were not ultimately convicted or found guilty of a crime, including those who were investigated, charged and/or prosecuted due in part to her role as a human source.
Chronology of key events
At various times between 1993 and at least 2010, Ms Gobbo provided information to Victoria Police about her clients, their associates and other people, some of whom were involved in Melbourne’s so-called ‘gangland wars’.
Key events related to Ms Gobbo’s relationship with Victoria Police and the establishment of the Commission are listed in Figure 2.
Figure 2: Timeline of key events
September: Victoria Police executes a search warrant at a house Ms Gobbo is sharing with her de facto partner, Mr Brian Wilson. Police find drugs at the house and charge Ms Gobbo with possession and use of cannabis and amphetamine, for which she later pleads guilty.
July: Victoria Police registers Ms Gobbo as a human source for the first time to provide information about Mr Wilson.
April: Ms Gobbo is admitted to practise as a lawyer.
May: Victoria Police registers Ms Gobbo as a human source for the second time, after she provides information about her former employer, Solicitor 1 (a pseudonym).
Ms Gobbo continues to provide information to Victoria Police informally.
Ms Gobbo has conversations with officers of Victoria Police’s Purana Taskforce, which is investigating several murders associated with the ‘gangland wars’.
September: Victoria Police registers Ms Gobbo as a human source for the third time. Over the following years, she provides a significant amount of information about her clients, their associates and other people, some of whom are involved in the gangland wars.
January: Ms Gobbo’s role as a human source ends when Victoria Police tries to transition her to the role of a witness in the first of two high-profile police investigations.
April: Ms Gobbo commences civil litigation against Victoria Police, claiming that it failed to fulfil promises made to her when she agreed to become a witness.
February: Former Victoria Police officer, Mr Paul Dale, is charged with criminal offences. Ms Gobbo is to give evidence in the proceedings. Mr Dale subsequently serves a subpoena on Victoria Police seeking documents that could have revealed Ms Gobbo’s status as a human source.
October: As a result of Mr Dale’s subpoena, Victoria Police obtains legal advice. That advice triggers the first of three confidential reviews into the use of Ms Gobbo as a human source (Comrie Review).
July: Former Chief Commissioner of Victoria Police, Mr Neil Comrie, AO, APM, completes a confidential report, Victoria Police Human Source 3838: A Case Review (Comrie Review), which examines the use of Ms Gobbo as a human source and Victoria Police’s policies and practices relevant to her management.
March: The Herald Sun newspaper publishes an article alleging that Victoria Police recruited a lawyer, ‘Lawyer X’, to inform on criminal figures running Melbourne’s drug trade.
April: Victoria Police makes a formal notification to the Independent Broad-based Anti-corruption Commission (IBAC) regarding the use of Ms Gobbo as a human source.
February: On behalf of IBAC, the Honourable Murray Kellam, AO, QC, completes a confidential report, Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Kellam Report), which examines the conduct of current and former Victoria Police officers in their management of Ms Gobbo as a human source, and Victoria Police’s human source management policies and procedures. The report identifies nine people whose prosecutions may have been affected by the use of Ms Gobbo as a human source.
February: The Director of Public Prosecutions (DPP), Mr John Champion, SC, completes a confidential report, Report of the Director of Public Prosecutions in Relation to Recommendation 12 of the Kellam Report (Champion Report), regarding the cases of the nine people identified in the Kellam Report. He considers that he has a duty to disclose the matters raised in the Kellam Report to six people, all of whom were represented by Ms Gobbo and prosecuted by the DPP. The DPP later identifies a seventh potentially affected person.
June: The Chief Commissioner of Victoria Police, Mr Graham Ashton, lodges an application in the Supreme Court of Victoria to stop the DPP from disclosing Ms Gobbo’s role as a human source to the seven potentially affected people, on the basis that this information is subject to a PII claim. Ms Gobbo later files her own proceeding against the DPP and the applications are heard together in a closed court.
June: The Supreme Court determines that the DPP should be permitted to disclose information to the potentially affected people about Ms Gobbo’s role as a human source. Victoria Police and Ms Gobbo later appeal the decisions to the Court of Appeal of the Supreme Court of Victoria.
November: The Court of Appeal dismisses the appeals and upholds the earlier decisions of the Supreme Court.
May: The Chief Commissioner and Ms Gobbo obtain special leave (permission) to appeal the Court of Appeal’s decision to the High Court of Australia.
November: The High Court revokes special leave to appeal, thereby allowing the DPP to disclose the information to the potentially affected people. The High Court orders that the hearing’s occurrence and outcomes not be published until 3 December 2018.
December: The Victorian Government establishes the Commission. At this time, Ms Gobbo’s identity has not been made public. She is referred to in court proceedings and the Commission’s Letters Patent as ‘EF’. It is generally understood that Ms Gobbo was a human source for Victoria Police between 2005 and 2009.
January: The Commission is told that Victoria Police first registered Ms Gobbo as a human source in 1995 and registered her as a human source for a second time in 1999. Victoria Police also identifies that other legal practitioners and employees may have been used as human sources.
The Chief Commissioner initiates new court proceedings seeking a permanent order prohibiting the publication of the names and images of Ms Gobbo and her children.
February: The Victorian Government expands the Commission’s terms of reference in light of Victoria Police’s disclosures about its earlier involvement with Ms Gobbo and the possible use of other legal practitioners and employees as human sources.
March: Ms Gobbo’s identity as a human source is made public.
July: The Commission publishes its progress report.
The Commission’s inquiry
The Commission examined matters of significant public interest that had been cloaked in secrecy for many years. Consequently, one of its critical functions was to assist the Victorian community to understand how Ms Gobbo came to be used as a human source, the consequences of her and Victoria Police’s actions, and what could be done to prevent similar events occurring in the future. The Commission therefore sought to conduct as much of its inquiry in public as possible.
This was complicated by the sensitive nature of material before the Commission. It was important to protect the identities of certain people who gave evidence at the Commission’s hearings and certain people affected by the inquiry in other ways. Releasing this information could have put their safety or the safety of people close to them at serious risk. It was also important not to reveal confidential methods and tactics that police use to detect and investigate crimes. The Commission adapted its processes to manage these risks and issues, including by closing hearings when necessary and using pseudonyms to deidentify certain people in its final report.
The Commission’s work
The Commission structured its inquiry around the five key areas of work outlined below.
Obtaining information relevant to the inquiry
The Commission issued notices to individuals and organisations to compel them to produce documents to the Commission by a specific time (‘notices to produce’). Some organisations and office holders are exempt from the Commission’s coercive powers under the Inquiries Act 2014 (Vic) (Inquiries Act) and provided information voluntarily. The Commission received over 155,000 documents during its inquiry.
Engaging with members of the public
The Commission received 157 submissions from members of the public and organisations about matters related to the terms of reference. These submissions informed the Commission’s review of potentially affected cases. They also helped the Commission identify issues requiring examination at its hearings, and possible reforms relating to human source management policies and practices; the use and disclosure of human source information in criminal proceedings; and legal ethics and legal profession regulation. The Commission also engaged with the community through its website and the media.
The Commission held 129 days of public and private hearings and heard from 82 witnesses. In hearings held between February 2019 and February 2020, the Commission examined issues related to cases potentially affected by the use of Ms Gobbo as a human source and the related conduct of Victoria Police officers (terms of reference 1 and 2). In May 2020, the Commission held hearings to examine policy and practice issues related to the use of human sources and human source information (terms of reference 3 and 4).
The Commission conducted an in-depth research program to inform its inquiry into terms of reference 3–6. This included undertaking literature reviews and desktop research; assessing policies and procedures provided by law enforcement and other agencies; conducting focus groups with currently serving Victoria Police officers involved in human source management; auditing and reviewing relevant human source files; preparing a consultation paper on disclosure issues and practices; and consulting with 97 organisations and experts from Australia and overseas.
Receiving submissions from Counsel Assisting
The role of Counsel Assisting the Commission was to identify and advance lines of inquiry; identify and determine the order of witnesses and examine witnesses at the Commission’s hearings; provide advice on particular areas of law and procedure; and make submissions to the Commission. In June and September 2020, Counsel Assisting provided written submissions to the Commission relating to terms of reference 1 and 2, including the findings they considered were open to the Commissioner to make about the conduct of Ms Gobbo and Victoria Police officers, and the cases they considered may have been affected by Ms Gobbo’s use as a human source.
Some key figures related to the Commission’s work are displayed in Figure 3.
Under the Inquiries Act, the Commission was able to conduct its inquiry in the manner it considered appropriate, subject to the Letters Patent, its powers under the Inquiries Act and the requirements of procedural fairness.
The Commission afforded procedural fairness to potentially affected persons and organisations in various ways, including by giving them the opportunity to apply to appear at the Commission’s hearings and/or cross-examine witnesses, and to make public submissions or provide other information in support of their interests.
In June 2020, after it received Counsel Assisting closing submissions, the Commission commenced a formal adverse findings and procedural fairness process. This enabled people whose interests were adversely or otherwise materially affected by Counsel Assisting’s proposed findings to make written submissions in response (‘responsive submissions’). The Commission received 45 responsive submissions relevant to terms of reference 1 and 2. The Commission also provided Victoria Police, the DPP and Office of Public Prosecutions (OPP), and The Police Association with relevant extracts from its draft final report relating to terms of reference 3–6 and received four responsive submissions.
The Commission considered Counsel Assisting submissions, all responsive submissions and other evidence obtained during the inquiry when making its findings, conclusions and recommendations. Where the Commission has made a finding adverse to a person or organisation, it has fairly set out their response in the final report.
A royal commission is not a court and it does not have judicial power. In light of this, and to avoid the risk of unfairly prejudicing possible future investigations or trials, the Commissioner decided not to make findings in the final report as to whether Ms Gobbo and/or any named current or former Victoria Police officers may have engaged in criminal conduct. The Commission, did, however, consider the duties and standards of professional behaviour required of police and lawyers, as well as the tests set down in law, to establish whether they may have engaged in misconduct. The question of whether Ms Gobbo and Victoria Police officers did, in fact, commit criminal offences or misconduct, and the implications of any such conduct for potentially affected persons’ cases, will be matters for investigatory and prosecuting agencies and the courts to determine.
The Commission’s conclusions
The potential effects of Ms Nicola Gobbo’s conduct as a human source
All people charged with a criminal offence, no matter who they are or what they are accused of, have the right to independent legal advice. They have the right to expect that their lawyer will act ethically and in their best interests, and will not disclose information shared in confidence. They have the right to a fair trial, in which the prosecution must prove their guilt beyond reasonable doubt; and they have the right to receive both information on which the prosecution intends to rely, and information that may undermine the prosecution case. A large number of people may have been denied these rights because of the conduct of Ms Gobbo and some current and former Victoria Police officers.
The Commission’s task was to examine the number of cases that may have been affected by the conduct of Ms Gobbo as a human source, and the extent to which they were potentially affected. The Commission had no power to overturn convictions, order re-trials, change sentences or release people from custody. Decisions to take or not to take these steps will be made by the courts, in the event that the potentially affected persons choose to pursue their appeal rights.
After a rigorous analysis of the evidence, including all relevant submissions, the Commission has concluded that the convictions or findings of guilt of 1,011 people may have been affected by Victoria Police’s use of Ms Gobbo as a human source. This includes people who were deprived of the opportunity to be represented by an independent lawyer acting in their best interests, and those who may have been affected by Ms Gobbo’s conflicts of interest and/or tainted evidence arising from her conduct as a human source. It includes cases where she was acting as the person’s lawyer, and cases where she was not; for example, where the person was a co-accused of one of her clients.
Figure 4 shows the categories of conduct relevant to whether the Commission found a case may have been affected by Ms Gobbo’s use as a human source. At least one of these categories applied to each of the 1,011 people identified by the Commission.
The 1,011 people can also be split into two groups. The first group of 887 people are potentially affected in a broad way, like the manner identified in R v Szabo. These people were represented by Ms Gobbo between 1998 and 2013 and it was not disclosed to them that she was providing information to police as a human source. The second group of 124 people are potentially affected in a more specific way. Counsel Assisting wrote case studies on each of these 124 people in their submissions.
Ms Gobbo’s duplicitous and improper conduct spanned a period of more than 15 years. It started before she was admitted as a lawyer in the early 1990s, and became progressively more entrenched and destructive until her third period as a human source for Victoria Police came to an end in 2009.
Even as a young law student in the 1990s, Ms Gobbo was willing to give police information about those who trusted her. In 1993, when Ms Gobbo was sharing a house with her then de facto partner, Mr Brian Wilson, Victoria Police executed a search warrant at the property. Ms Gobbo told police that drugs were hidden in a vent in the laundry. Ms Gobbo was charged with use and possession of cannabis and amphetamine. She pleaded guilty and received a non-custodial sentence without conviction. Mr Wilson was charged with trafficking, use and possession of a drug of dependence, and received a suspended sentence.
In the following two years, Ms Gobbo maintained contact with Victoria Police, actively seeking out and cultivating opportunities to meet with police officers and give them information. In 1995, Victoria Police officers registered her as a human source, evidently because of information she had provided against Mr Wilson.
Ms Gobbo was admitted to legal practice in 1997. As part of the admission process, she was required to make submissions to the Board of Examiners about her suitability to practise law, including by submitting an affidavit. The affidavit she provided to the Board was misleading in several respects regarding her drug-related offending.
Between 1997 and 1999, Ms Gobbo gave information to police about the alleged fraudulent activity of her employer, Solicitor 1 (a pseudonym). She approached police proactively and enthusiastically, suggesting people and matters they should investigate. These actions undermined the interests of her clients at the time. The information Ms Gobbo provided led to Victoria Police registering her as a human source for the second time in 1999.
By the time the gangland wars escalated in the early 2000s, Ms Gobbo had developed professional and personal relationships with prominent organised crime figures. Victoria Police’s Purana Taskforce was established to combat the violence arising from the gangland wars. Purana pursued a strategy of persuading people suspected of criminal activity to ‘roll’; that is, to give evidence against their associates, particularly those higher up in their criminal networks, in exchange for a reduced sentence. Ms Gobbo proved a valuable resource to achieve that end.
The case of Mr McGrath (a pseudonym) illustrates how Ms Gobbo assisted the Purana Taskforce to pursue this strategy. Ms Gobbo played a part in convincing Mr McGrath, her client, to give evidence against his associates. This conduct was not in itself improper, but she made corrections to and comments about his statements, to assist police, without taking instructions from him. She encouraged him to change his story to strengthen Victoria Police’s case against his associates, and concealed from him the true nature of her relationship with police. Despite Ms Gobbo and some Victoria Police officers submitting that this aspect of Ms Gobbo’s conduct was not improper, and even though the outcome for Mr McGrath was favourable, the Commission has found that he did not have the benefit of an independent lawyer acting on his instructions.
Mr McGrath’s evidence led to the prosecution of Mr Thomas (a pseudonym). Given that Ms Gobbo had acted for Mr McGrath and refined his statements to strengthen his credibility as a witness, including against Mr Thomas, it was unethical for her to then act as Mr Thomas’ lawyer. It does not matter that Mr Thomas knew she had acted for Mr McGrath—he did not know she had worked with police to bolster Mr McGrath’s credibility. As with Mr McGrath, Ms Gobbo encouraged Mr Thomas to roll. She was actively involved in this process, advising police about how to approach him, suggesting topics to explore and editing his statements. Mr Thomas ultimately made many statements to police implicating others in criminal activity.
The case of Mr Faruk Orman, also Ms Gobbo’s client, illustrates the chain reaction caused by her conduct. The case against Mr Orman relied heavily on Mr Thomas’ evidence. Ms Gobbo took active steps to ensure that Mr Thomas gave evidence against Mr Orman. She divulged Mr Orman’s defence tactics to Victoria Police officers, and kept the true nature of her involvement with Mr Thomas and Victoria Police hidden from Mr Orman.
Perhaps the most brazen example of Ms Gobbo’s conduct is the case of Mr Cooper (a pseudonym), a drug manufacturer for the Mokbel family. Police believed that if Mr Cooper were to roll, he might disclose key details of the Mokbel criminal syndicate. Ms Gobbo leveraged her position as Mr Cooper’s lawyer, friend and confidant to persuade him to divulge information about his criminal activities. She gave Victoria Police information about his drug laboratory, leading to his arrest. When police encouraged Mr Cooper to roll, he asked for Ms Gobbo to attend the police station as his lawyer. She obliged and, acting as both Mr Cooper’s lawyer and an agent for police, advised him to assist authorities. Mr Cooper heeded Ms Gobbo’s advice and ultimately made over 40 statements to police.
Mr Zlate Cvetanovski was also caught in the web of Ms Gobbo’s compounding conflicts of interest. Ms Gobbo represented Mr Cvetanovski after his arrest on drug charges. The evidence of Mr Cooper was crucial in the case against him. Perhaps unsurprisingly given her previous conduct, Ms Gobbo did not disclose her involvement with Mr Cooper to Mr Cvetanovski. She also assisted Victoria Police to obtain warrants and gather evidence used to prosecute him.
The case of Mr Antonios (Tony) Mokbel points to the sheer volume of information Ms Gobbo gave to Victoria Police. She told police about Mr Mokbel’s properties, finances, contact numbers, associates, and the vehicles and code names he used. She divulged the defence strategies and tactics used by Mr Mokbel’s legal team, both in his criminal trial and his extradition proceedings. She represented numerous clients, such as Mr Cooper, who with her assistance gave evidence against Mr Mokbel.
The ‘Tomato Tins’ drug syndicate cases exemplify the wide-ranging impacts of Ms Gobbo’s conduct. She provided Victoria Police with information about the drug syndicate led by Mr Pasquale Barbaro and, taking advantage of her relationship with another of her clients, Mr Rabie (Rob) Karam, gave police the bill of lading for a shipment of tomato tins that contained vast amounts of MDMA. She told police about the locations of meetings between Mr Karam and other co-conspirators. Ultimately, 32 people were convicted for their part in the Barbaro drug syndicate. Remarkably, Ms Gobbo acted for at least 10 of these people, after having provided police with information that may have led to them being charged.
As these brief case studies show, Ms Gobbo’s conduct as a human source for Victoria Police, while practising as a criminal defence lawyer, was extensive and sustained. It was also inexcusable. Her breach of her obligations as a lawyer has undermined the administration of justice, compromised criminal convictions, damaged the standing of Victoria Police and the legal profession, and shaken public trust and confidence in Victoria’s criminal justice system.
Already, two people, Mr Orman and Mr Cvetanovski, have successfully appealed their convictions based on Ms Gobbo’s conduct. There are many more appeals in progress.
The Commission’s role in exposing Ms Gobbo’s actions, although not judicial, is a powerful one. Its inquiry has shone a bright light on the extraordinary reach of her once-hidden wrongdoing. Ms Gobbo herself, in giving evidence before the Commission, admitted that aspects of her conduct were unethical and wrong. The Commission’s work will allow the community to better understand the nature of this conduct and, critically, empower those whose convictions or findings of guilt may be affected to make informed decisions about any future action they may take.
The Commission recommends that the Victorian Government appoints a Special Investigator to investigate whether Ms Gobbo may have committed any criminal offences connected with her conduct as a human source for Victoria Police.
Ms Gobbo was recently struck off the Supreme Court’s Roll of Legal Practitioners and is unable to practise law. She remains, however, on the Victorian Bar Roll’s list of ‘retired’ barristers. The Commission is concerned that this has the potential to undermine public confidence in the Victorian Bar. In light of Ms Gobbo’s conduct, the Commission recommends that the Victorian Bar seeks to address this issue, given the symbolic significance of her remaining on the Bar Roll.
The conduct of Victoria Police officers
The duties and obligations of police officers arise from their oath or affirmation, legislation, prosecutorial guidelines and the common law. Before they can commence service, every police officer must take an oath or make an affirmation promising to:
- well and truly serve without favour or affection, malice or ill-will
- keep and preserve the peace
- prevent, to the best of their abilities, all offences
- discharge all of the duties legally imposed on them faithfully and according to law.
In their recruitment, use and management of Ms Gobbo as a human source, the conduct of a number of Victoria Police officers seems to have fallen short of the behaviour required by their legal, ethical and professional obligations when they:
- encouraged Ms Gobbo to act as counsel for an accused person or at least condoned it, knowing that she was a human source and was therefore not providing the person with independent legal advice; was covertly informing on them or had covertly informed on them; and/or had provided information that assisted police to obtain incriminating evidence against them
- failed to disclose these matters to the prosecution, the defence or the court, or to properly claim PII, despite the fact that this evidence would potentially have assisted the defence of accused persons
- failed to seek legal advice on these matters.
The Commission accepts Victoria Police’s contentions that it is important to contextualise the lead up to Ms Gobbo’s third registration as a human source in 2005. The murders of Mr Jason Moran and Mr Pasquale Barbaro at a children’s football match in 2003 intensified political and public pressure for Victoria Police to end Melbourne’s gangland wars. It established the Purana Taskforce to do just that. As noted above, Purana’s key strategy was to target the ‘weakest link’ in criminal networks and have them give evidence against more senior figures. At around this time, Victoria Police also established the Source Development Unit (SDU) to better utilise human sources, and its officers were eager to prove its worth.
In this environment, Ms Gobbo found herself in a precarious situation with her high-profile gangland clients and turned to Victoria Police. Remarkably, Ms Gobbo and the officers involved were unaware that this was her third registration as a human source for Victoria Police.
Despite the extraordinary circumstances of a criminal defence barrister becoming a human source against the very people she represented, neither the SDU officers who registered her, nor their superior officers, sought legal advice as part of the registration process. The absence of such advice in the face of serious and obvious risks became a recurrent theme in Victoria Police’s management of Ms Gobbo. A compelling explanation is that Victoria Police did not want to be told they could not use Ms Gobbo in the ways they intended.
Mr McGrath’s case in 2004, a year before Ms Gobbo’s third registration, established patterns of police behaviour that would continue in the years following. Purana investigators worked with Ms Gobbo in encouraging Mr McGrath to become a prosecution witness. The investigators left Ms Gobbo to manage her conflicts of interest, and concealed the true nature of her involvement from Mr McGrath and from those he implicated in serious crimes.
Similar events occurred shortly afterwards with Ms Gobbo’s representation of Mr Thomas. Purana Taskforce investigators worked with her as she encouraged Mr Thomas to confess to serious crimes and become a prosecution witness. When Mr Thomas considered whether he should change his legal team, investigators vouched for Ms Gobbo’s honesty. Again, Victoria Police did not make proper disclosure about Ms Gobbo’s role to Mr Thomas or the people he implicated in the statements he gave to police.
There were elements of opportunism in Victoria Police using Ms Gobbo to help them roll Mr McGrath and Mr Thomas. In Mr Cooper’s case, however, this outcome was carefully planned.
Mr Cooper was on bail for two episodes of serious drug offending, the second committed while he was on bail for the first, and he was likely to receive a heavy sentence. Victoria Police officers worked with Ms Gobbo, his lawyer, to facilitate his third arrest for serious drug offending so that his situation would be so dire that he had no alternative but to assist police in bringing down the Mokbel cartel. With Ms Gobbo’s assistance, Victoria Police set up Mr Cooper for his third arrest. He went on to make over 40 statements that helped them charge, and ultimately convict, 26 people.
As prosecutions relying on Mr Cooper’s evidence progressed, Victoria Police avoided disclosing to the accused persons Ms Gobbo’s role in persuading Mr Cooper to become a prosecution witness against them. Investigators told the Commission that they acted in accordance with their training and standard practice at the time; that they assumed their superiors or Ms Gobbo’s SDU handlers were managing the risks; and that they were always motivated by the need to protect her safety, rather than any improper intent. While part or all of that may be true, it does not change the fact that accused persons, many of whom faced lengthy prison terms, were denied information to which they were entitled and that could have assisted them to defend the criminal charges against them.
It should have been clear to the Victoria Police officers involved that they needed to disclose Ms Gobbo’s status and conduct as a human source to the DPP and accused persons, or to make a PII claim to the court accompanied by all relevant supporting material. It was for the court, not Victoria Police, to determine whether this information should be kept from the accused persons. At the very least, the officers should have appreciated that this was a matter requiring legal advice.
At various times, the SDU officers managing Ms Gobbo were concerned about the potential ethical and legal problems involved in using her as a human source. By mid-2006, the prospect of a royal commission had been raised, signalling a growing appreciation of the risks within Victoria Police. Ms Gobbo’s health had also deteriorated. From mid-2006 to mid-2007, the SDU officers had in place an ‘exit strategy’ to bring Ms Gobbo’s role as a human source to an end. She was not ready to stop. And as senior Victoria Police officers began to see her potential value in helping to solve high-profile murder investigations involving suspected police corruption, the plans to deregister Ms Gobbo were shelved.
These investigations, Petra Taskforce and Briars Taskforce, each involved a series of ‘sliding door’ moments when senior officers could and should have acted to stop using Ms Gobbo as a human source, and to the extent possible, prevent further damage to Victoria’s criminal justice system. They did not do so. This meant Victoria Police could continue to use Ms Gobbo as a source and capitalise on the valuable information and tactical advice she provided.
After receiving a subpoena in January 2011 to provide documents that could have revealed Ms Gobbo’s status as a human source, Victoria Police finally obtained legal advice in October 2011. The advice identified that Ms Gobbo’s role as a human source may need to be disclosed and that potentially affected persons may seek to challenge their convictions. At that point, Victoria Police should have acted with great urgency to address the fact that people who had been convicted of crimes and lost their liberty may have been denied their rights to a fair trial. Its progress, however, was slow—both in taking steps to fully understand the consequences of Ms Gobbo’s use as a human source, and in seeking to remedy the situation.
This delay was completely unacceptable, not least because it was a problem of Victoria Police’s own making. It is likely that it stemmed not just from concerns for Ms Gobbo’s safety, but also a desire to avoid reputational damage, external inquiries, judicial criticism and appeals against convictions. These factors were placed ahead of accepting responsibility and ensuring justice was done according to law.
After three confidential reviews, and two years in which Victoria Police fought to prevent the DPP from disclosing to certain people that their convictions may have been tainted, Ms Gobbo’s use as a human source was revealed to affected persons and the Victorian community, following the High Court’s decision in 2018. This revelation occurred some 13 years after Victoria Police registered Ms Gobbo as a human source for the third time.
The Commission considers that the conduct of several current and former Victoria Police officers in managing Ms Gobbo, including their failure to fulfil their disclosure obligations in prosecutions affected by her informing, may have constituted misconduct and/or breaches of discipline at that time. That conduct was apt to bring Victoria Police into disrepute and diminish public confidence in it.
The Commission recommends that the Victorian Government refers the conduct of current and former Victoria Police officers to the proposed Special Investigator to investigate whether there is sufficient evidence to establish the commission of criminal and/or disciplinary offences connected with the use of Ms Gobbo as a human source. With the Special Investigator’s investigation into the conduct of Ms Gobbo and current and former officers of Victoria Police, and with those who may have failed to receive a fair trial because of this conduct now able to pursue their appeal rights in an informed way, Victorians can be assured that their criminal justice system is working in accordance with the rule of law, as it should.
Victoria Police's conduct: systemic issues and causal factors
While the use of Ms Gobbo as a human source was in many ways extraordinary, it was also a systemic failure. It continued for several years, even though many Victoria Police officers, including some very senior officers, were aware of Ms Gobbo’s informing.
Victoria Police concedes that more than 100 police officers and personnel knew that Ms Gobbo was a human source between 2005 and 2009. It appears that none of these officers or personnel reported it to or raised concerns with Victoria Police’s then Ethical Standards Department or with an external oversight body.
Several officers who gave evidence to the Commission stressed that, at the time of Ms Gobbo’s use as a human source, Victoria Police was under significant pressure to stem the violence associated with Melbourne’s gangland wars. Some suggested that there was nothing unlawful or improper about their management of Ms Gobbo and the associated risks.
In late August 2020, Victoria Police provided a submission to the Commission, in which it accepted:
... without reservation that the way in which Ms Gobbo was managed as a human source in a way that resulted in a profound interference with the relationship between lawyer and client was a major failing. The consequences of that failing are resonating through the criminal justice system and will do so for many years. It has come at a very high cost to the organisation, to public confidence and to the criminal justice system.2
Victoria Police also issued a public apology to the courts, whose processes were affected by what occurred, and to the community for breaching its trust.
In its submission, Victoria Police contended that the conduct occurred because of reasons that are ‘primarily organisational and systemic’. It accepted that individual officers should have done better in some instances, but maintained that those involved in the recruitment, handling and management of Ms Gobbo did not engage in knowing impropriety.
The Commission does not accept that there was no knowing impropriety on the part of any officer involved in these events. The conduct of some officers fell well short of an acceptable standard. Further, an organisation is the sum of its parts; it is not an entirely separate entity that functions independently of the people within it. If the organisation and systems were flawed, it was because the individuals who made up the organisation and developed its systems, particularly senior leaders, lacked the moral clarity, vision and ability to fix those flaws. Several officers, including those responsible for leadership of the organisation, knew enough about the risks and the potential consequences of using Ms Gobbo as a human source to have taken a different and more appropriate course.
The Commission agrees that there were several organisational conditions, structures, cultures and processes that contributed to the events and the fact that they were able to continue for so many years. These include failures of leadership and governance, of management and supervision, of policy and training, and of processes to properly identify, assess and manage risk.
Much of the conduct demonstrated by individual officers could not have occurred without critical failures of leadership and governance in Victoria Police—in particular, an ineffective command and governance structure; and a pervasive and negative cultural emphasis, led from the top down, on getting results, with insufficient regard to the serious consequences for the rights of individuals and the proper administration of the criminal justice system.
There were also deficiencies in the human source management policy framework at the time of Ms Gobbo’s relationship with Victoria Police. The policies and processes in place from 1995 to 2003 were rudimentary. The overriding focus was protecting the confidentiality of a human source’s identity and location—known as the ‘golden rule’. There was no risk assessment process and little guidance on the appropriateness of registering people whose use as a human source could pose serious risks to themselves, other people or Victoria Police.
By 2003, Victoria Police had begun to implement a contemporary human source management policy. While it considered this a best practice approach, the organisation maintained a rigid, unnuanced application of the golden rule. There is an obvious and critical need to protect the safety of human sources—but this must be balanced against other important public interests. Victoria Police’s sole and exclusive focus on protecting the identity of the human source at all costs seems to have contributed to officers neglecting other fundamental obligations, including their duty of disclosure. The human source management policy was also deficient as it lacked guidance relating to obtaining and using confidential or privileged information, and when to seek legal advice.
There were also instances of SDU officers and investigators failing to comply with parts of the human source management policy and associated procedures. This went largely unchecked by more senior officers, suggesting a willingness to tolerate bending the rules to help solve serious crime.
While the daily engagement with and management of Ms Gobbo was the SDU’s responsibility, the officers appointed as her handlers were not wholly responsible for the problems that arose from her use as a human source. Other factors contributed, including the lack of an appropriately trained senior officer with dedicated responsibility for overseeing the SDU; the apparent willingness of managers to defer to SDU officers’ expertise rather than actively supervising their actions; and a possible perception among some SDU officers and investigators that, because certain senior officers were aware of Ms Gobbo’s use as a human source, they condoned or even encouraged it.
Another organisational factor was the inadequacy of policies, procedures and training related to police disclosure obligations, a fact that has been highlighted by other recent inquiries into Victoria Police practices.
Victoria Police has long been on notice about the need to make proper disclosure to people whose cases may have been affected by the use of Ms Gobbo as a human source. The Commission is concerned about how slowly Victoria Police has acquitted its disclosure obligations and provided these people with the information that they should have received many years ago as part of their trials. To address this, the Commission recommends that Victoria Police provides monthly reports on its progress to the proposed Implementation Taskforce and Implementation Monitor, discussed below.
The Commission is also concerned that so many officers across different levels within Victoria Police did not take adequate responsibility for their part in the events that were the subject of this inquiry. This suggests a reluctance to acknowledge their contribution to the individual and collective failures that led to the recruitment, use, management and non-disclosure of Ms Gobbo as a human source, and to be accountable for their actions.
While Victoria Police’s use of Ms Gobbo as a human source occurred many years ago, the systemic repercussions are still being felt. Court proceedings, and the various inquiries established to examine the events, have cost many millions of public dollars. Public confidence in police has been undermined. Given the systemic failures identified by the Commission, it is critical that Victoria Police assures the Victorian Government and community that it has taken and will continue to take steps to prevent past mistakes being repeated, including in its response to the Commission’s recommendations. It is encouraging that the Chief Commissioner of Victoria Police has commented publicly that the organisation will heed the Commission’s recommendations and take whatever steps necessary to learn from its mistakes.
Victoria Police’s use of other human sources with legal obligations of confidentiality or privilege
In January 2019, shortly after this inquiry commenced, the Commission became aware that Victoria Police had identified a number of other human source files related to people associated with the legal profession. Consequently, the Victorian Government extended the scope of the inquiry, requiring the Commission to examine Victoria Police’s use of any other human sources with legal obligations of confidentiality or privilege (term of reference 5a).
To this end, during the inquiry, the Commission:
- reviewed 12 Victoria Police human source files related to people associated with the legal profession dated between 1990 and 2016, and in some cases examined relevant issues in private hearings
- conducted an audit of 31 human source files related to people with other occupations potentially subject to legal obligations of confidentiality or privilege (such as nurses and government workers), dated between 2016 and 2019
- inquired into allegations by members of the public that 45 people with legal obligations of confidentiality or privilege had been used as human sources by Victoria Police.
Based on the information available to the Commission, there is no evidence to indicate that Victoria Police’s use of any human sources, other than Ms Gobbo, resulted in the use of confidential or privileged information that may have affected the validity of any criminal prosecutions or convictions. While this finding is encouraging, it must be qualified by the Commission’s limited access to relevant files, as discussed below.
The Commission’s review and audit of files did identify some instances of Victoria Police officers not complying with the organisation’s policies and procedures, along with a potential lack of understanding among some officers about the risks of using human sources with legal obligations of confidentiality or privilege. These observations were consistent with themes and issues that emerged in other aspects of the Commission’s work, including its focus groups with Victoria Police officers who hold human source management responsibilities.
There were some limitations on the Commission’s review of these human source files, including its lack of access to Interpose, Victoria Police’s intelligence and case management system, which contains human source records. Consequently, the Commission had to rely entirely on Victoria Police to identify and disclose relevant files and information, and to advise if and how it used any information it received from these human sources.
Victoria Police did not give the Commission access to 11 human source files relating to people with potential legal obligations of confidentiality or privilege. It said these files were extremely sensitive and could not be provided to the Commission because they were subject to a PII claim.
As these 11 human source files have not been independently reviewed, the Commission recommends that the Victorian Government appoints a suitably qualified person to review them as a priority.
The review should identify whether there is evidence to suggest that any criminal prosecutions were affected—either because evidence was improperly obtained by Victoria Police from any of the 11 human sources, or because relevant evidence that should have been disclosed to prosecuting authorities and accused persons was not disclosed. If such evidence is identified, the Chief Commissioner should make a referral to the Victorian DPP and/or the Commonwealth Director of Public Prosecutions.
Victoria Police’s implementation of the Kellam Report recommendations
In 2014, following a notification from Victoria Police, IBAC appointed the Honourable Murray Kellam, AO, QC, to confidentially examine the conduct of current and former Victoria Police officers in relation to their use of Ms Gobbo as a human source, and the application and adequacy of Victoria Police policies, control measures and management practices during the period from 2005 to 2009.
Mr Kellam’s inquiry followed an earlier review into Victoria Police’s use of Ms Gobbo as a human source by former Chief Commissioner Neil Comrie, AO, APM, entitled Victoria Police Human Source 3838: A Case Review (Comrie Review).
It also followed a series of other internal and external reviews into Victoria Police’s use of human sources dating back to the early 2000s. Those reviews consistently highlighted:
- insufficient management and supervision of officers responsible for handling human sources, creating risks of misconduct and corruption
- the development of inappropriate and sometimes corrupt relationships between human sources and police officers
- insufficient information management controls, leading to the leaking of sensitive and secretive information to criminal networks
- a lack of compliance with Victoria Police’s Human Source Policy among certain officers and units, including the use of ‘unregistered sources’
- a lack of sufficient safeguards within the policy framework
- inadequate training of officers responsible for handling human sources.
Mr Kellam completed his confidential report, entitled Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Kellam Report), in 2015. His key findings, many of which echoed those of the Comrie Review, are set out in Box 2.
BOX 2: KEY FINDINGS OF THE KELLAM REPORT
The Kellam Report found that:
The Kellam Report’s 16 recommendations addressed three key areas of Victoria Police’s human source management practices:
Victoria Police has now implemented most of the Kellam Report recommendations, having introduced a series of policy changes between 2014 (in response to the Comrie Review) and 2020, while the Commission’s inquiry was underway.
The policy changes introduced by Victoria Police include:
- additional safeguards for human sources in occupations subject to legal obligations of confidentiality or privilege
- a requirement that risk assessments clearly outline the purpose for engaging a human source and a requirement for a revised risk assessment if the purpose changes
- a requirement that ‘high risk’ human sources be reviewed each month to consider whether any new risks have arisen that may change Victoria Police’s approach to engaging and managing the source
- new references to Victoria Police’s obligations under the Charter in the Human Source Policy, along with some hypothetical scenarios related to human sources involving legal obligations of confidentiality or privilege.
Some aspects of Victoria Police’s response to the Kellam Report recommendations are commendable. It took early action to address certain policy deficiencies while the Kellam inquiry was underway. It also implemented most recommendations within 12 months of the inquiry’s completion.
In other areas Victoria Police’s response was not as effective or timely as it could have been. The most important Kellam Report recommendations related to safeguards associated with the use of confidential or privileged information from human sources, and risk assessment practices. The policy changes that Victoria Police introduced did not adequately fulfil the intention of these recommendations, which was to:
- manage the risk of obtaining or using confidential or privileged information from any human source, not just those with occupations subject to legal obligations of confidentiality or privilege
- make clear that, before registering any human source, officers should consider whether the use of the source is necessary and proportionate to the law enforcement objective to be achieved by obtaining the information.
In May 2020, Victoria Police further revised its Human Source Policy after receiving advice from its counsel during the Commission’s inquiry. While some of these policy changes more fully addressed the intention of the Kellam Report recommendations, they came five years after completion of the Kellam Report, and eight years after the Comrie Review made the same recommendations. Given the importance of the policy improvements, this delay is unacceptable.
There is also evidence that Victoria Police did not take all necessary steps to embed its policy reforms into operational practice, through supporting guidance, communication and training for officers with human source management responsibilities. This appears to have contributed to uncertainty and confusion among officers about critical policy requirements and safeguards relating to the use of confidential or privileged information from human sources.
Victoria Police could have taken more effective action to monitor and evaluate the effectiveness of policy changes, including by engaging with officers responsible for human source management regarding their understanding of the new requirements and expectations.
The Commission recommends that Victoria Police establishes clear processes for the future review and amendment of human source management policies and procedures, including processes for seeking and incorporating operational input from officers involved in human source management; providing timely and accurate advice to officers about policy and procedural changes; and undertaking regular review and evaluation to address any emerging risks or developments in the operating environment. This will in turn help to ensure that policy requirements are clear, understood by officers, and applied effectively and consistently across the organisation.
2 Responsive submission, Victoria Police, 24 August 2020, 10 [2.8].
Victoria Police processes for the use and management of human sources involving legal obligations of confidentiality or privilege
As this inquiry has shown, the use of lawyers as human sources poses clear risks. These risks also apply to the use of other human sources who have access to confidential or privileged information. This is not to say that police should be absolutely prohibited from using human sources who are subject to legal obligations of confidentiality or privilege, but it does mean that the use of a human source who has access to confidential or privileged information should be a rare occurrence, treated with extreme caution and subject to strict safeguards.
While specific risks arise from the use of human sources involving legal obligations of confidentiality or privilege, the use of any human source by police presents legal and ethical risks. Human sources are typically people involved in criminal activity, and the need for police to form relationships with them to obtain information sometimes blurs ethical and professional boundaries, creating risks of misconduct and corruption. Because the engagement between police and the human source necessarily occurs in secret, any improper conduct may not be detected.
Further, the tasking of human sources—and the issuing of rewards to them—can involve police exploiting relationships and encouraging sources to engage in deception. This can in turn involve limiting the human rights of the source or of others. Finally, by covertly providing information to police about people known to them, human sources can put themselves and those close to them at risk of serious harm or even death.
Given these risks and the need for a consistent, coherent policy and procedural framework for the use of human sources, the Commission adopted a broad approach to its examination of Victoria Police’s current processes. It identified safeguards needed not only to prevent the improper use of confidential or privileged information, but also to support the ethical use of human sources more generally.
Victoria Police has made significant improvements to its human source management processes since its registrations of and interactions with Ms Gobbo. It is now one of the few Australian law enforcement agencies that adopts specific rules and safeguards for the use of human sources involving legal obligations of confidentiality or privilege.
While these improvements are commendable, an internal policy is not sufficient to appropriately govern Victoria Police’s use and management of human sources, nor to instil confidence in the Victorian community about the integrity and propriety of its human source management program. The Commission has concluded that legislation is necessary to regulate Victoria Police’s registration and management of human sources, and provide clear, enforceable rules about when and how they can be used. This would bring the requirements for Victoria Police’s use of human sources into line with those that govern its use of other covert powers and methods.
The proposed human source management legislation needs to permit and facilitate the effective use of sources to gather intelligence, conduct investigations, and prevent, disrupt and detect criminal activity, while simultaneously ensuring that their use is necessary, proportionate, justified and compatible with human rights. It should include specific safeguards for the use of sources who are reasonably expected to have access to confidential or privileged information.
The legislative framework should also incorporate clear, streamlined responsibilities and arrangements for registering human sources, to increase accountability and efficiency in decision making. Rather than dispersing responsibility across multiple people in a committee or business unit, these important decisions should be made by specific officers with the appropriate seniority and experience.
Decisions about the registration of human sources who may access confidential or privileged information should be made by an officer of or above the rank of Assistant Commissioner, informed by legal advice and external, independent input. In the unlikely event that Victoria Police confronts a situation where it wishes to register a source due to a specific intention to obtain or disseminate confidential or privileged information, the legislation should specify that this can only occur if there are exceptional and compelling circumstances; that is, where there is a serious threat to national security, the community, or the life and welfare of a person, and the information cannot be obtained through any other reasonable means.
The Commission does not make the recommendation for a legislative framework lightly. It recognises that Victoria Police may have concerns that such a framework will result in the use of human sources becoming more widely known in the community, or compromise source safety or police methodology. Victoria Police may also be concerned that it will deter officers from using human sources. While these are legitimate concerns, evidence before the Commission—including from law enforcement agencies working under a comparable legislative framework in the United Kingdom—suggests that neither of these risks will eventuate, provided the legislation is appropriately drafted. With this in mind, the Commission urges those drafting the legislation to undertake meaningful consultation with Victoria Police and other relevant stakeholders.
The introduction of legislation will not displace the need for internal policies and procedures. Rather, the Human Source Policy should complement and expand upon legislative requirements and provide officers with practical guidance about why these requirements exist and how to satisfy them. The current Human Source Policy would benefit from the inclusion of a clear set of principles and objectives to support police decision making and actions, and encourage a shared understanding of Victoria Police’s expectations for the proper and ethical use of human sources.
The Human Source Policy would also benefit from the inclusion of more comprehensive guidance about human rights, the nature of confidential and privileged information, and the risks of obtaining and disseminating it. This guidance should also be embedded in human source management training.
The Commission also makes recommendations to complement the new legislative and policy framework and strengthen Victoria Police’s human source management capability and capacity. These include:
- a centralised organisational model, where all human sources are managed by dedicated source teams reporting directly to central management and by officers with the appropriate skills, training and experience
- ongoing training for officers involved in human source management, to update their knowledge and understanding of policy requirements, and to reinforce and build on their existing skills to manage human sources and the associated risks
- training for senior officers that focuses on effective risk management, supervision, oversight and decision making, to give them the knowledge and skills to effectively supervise and support the officers responsible for the day-to-day management of human sources
- clear instructions and practical guidance about who is responsible for the supervision of officers who manage human sources, why supervision is necessary and how it should be performed in practice
- more emphasis in human source risk assessments on confidential and privileged information, human rights and the risks that the use of a source could pose to the proper administration of justice
- an independent evaluation of risk assessment tools under development or recently implemented by Victoria Police
- formal processes and a reporting framework for compliance audits and monitoring of human source management
- ‘maximum time in position’ requirements for police officers in dedicated human source management roles, to support officer health and wellbeing, and reduce the risks of corruption and misconduct that can arise in specialist, covert areas of policing.
The Commission also emphasises the importance of diversity in Victoria Police and among its officers who work with and oversee the use of human sources, recognising that the composition of the organisation should reflect that of the Victorian community.
The scale of change recommended by the Commission is significant. This should not discourage Victoria Police. It has already taken steps to improve its human source management framework, which the Commission acknowledges and commends. The Commission’s recommendations aim to build on these reforms and existing strengths, and support Victoria Police officers to manage sources lawfully, ethically and even more effectively.
Figure 5 displays the Commission’s recommendations, across each part of the human source management process.
External oversight of Victoria Police’s use of human sources
Independent, external oversight encourages police officers to use their significant powers fairly and lawfully, and adhere to high ethical and professional standards, including when they are using covert methods and tactics. It helps to hold officers to account when they act improperly, and supports public trust and confidence in policing.
There is currently no external oversight of Victoria Police’s use of human sources beyond IBAC’s general jurisdiction to investigate alleged police misconduct and corruption; for example, in response to a complaint from a member of the public or a notification from Victoria Police. It is unlikely, however, that a person other than a human source would complain to IBAC about possible police misconduct relating to human source management, because of the secret nature of the activity and the high risks to a source’s safety should their identity become widely known.
In contrast, external oversight regimes exist to monitor and scrutinise Victoria Police’s use of other covert powers, methods and functions, such as the use of surveillance devices, telecommunications intercepts, controlled operations, covert search warrants, assumed identities and the admission of a person to witness protection.
As in Victoria, in other Australian states and territories, there are no agencies with specific, dedicated functions to independently oversee police agencies’ use of human sources. At the Commonwealth level, the Inspector-General of Intelligence and Security monitors intelligence agencies’ operational activities through regular inspections, and reviews their human source management processes and practices to make sure that agency personnel act legally and with propriety, comply with ministerial guidelines and directives, and respect human rights.
In the United Kingdom, the Investigatory Powers Commissioner’s Office (IPCO) provides independent oversight of public authorities’ use of investigatory powers, including the use of human sources. IPCO monitors authorities’ compliance with legislation, codes of practice and relevant policies by undertaking inspections and reviewing human source files. In addition, law enforcement agencies must seek the final approval of an IPCO Judicial Commissioner if they intend to use a human source to obtain legally privileged information.
Consistent with the views of stakeholders and other available evidence, the Commission considers that external oversight of Victoria Police’s use of human sources would:
- encourage compliance with legal and policy requirements for the registration and use of human sources
- mitigate risks to Victoria Police, human sources and the criminal justice system
- raise policing standards, including by assisting police to balance competing public interests and make ethical decisions
- address a gap in Victoria’s current oversight system, noting that other covert police powers and methods are subject to external oversight
- support transparency and improve public confidence in Victoria Police’s use of human sources.
While the Commission considers that greater scrutiny is warranted for human sources who might provide confidential or privileged information to Victoria Police, it is also of the view that a broad external oversight function is warranted for all human sources. This recognises the inherent risks and potential intrusiveness of the use of human sources, evidence of historical and ongoing non-compliance with human source management policy requirements among some Victoria Police officers, and the need to assure the community that police manage all human sources ethically and appropriately.
Figure 6 displays the Commission’s recommended model for the external oversight of Victoria Police’s use of human sources.
The Commission recommends a tiered external oversight model, with the nature and intensity of oversight aligned to the level of risk involved. This model consists of three tiers:
- Tier 1—Consistent with its role in relation to other police powers and functions, the Public Interest Monitor (PIM) should be involved in Victoria Police’s decisions to register human sources who are reasonably expected to have access to confidential or privileged information. On notification of a proposed registration, the PIM’s role would be to test the content and sufficiency of the material relied on in the registration application and to make submissions or recommendations to Victoria Police, including advice on whether the PIM considers it necessary and proportionate to register the human source.
- Tier 2—IBAC should be responsible for monitoring Victoria Police’s compliance with the human source legislative and policy framework. This monitoring function should extend to Victoria Police’s use of all human sources, and should consist of regular inspections and public reporting.
- Tier 3—IBAC should retain its existing jurisdiction to investigate complaints about police misconduct and corruption, which may include complaints about Victoria Police’s use and management of human sources.
The Commission also considers that it would be beneficial for the Victorian Government to undertake a principle-based review of the broader police oversight system, with a view to improving the coherence and consistency of this system and encouraging meaningful, outcome-focused monitoring of Victoria Police conduct and compliance.
The use and disclosure of information from human sources in the criminal justice system
Victoria Police’s obligations and practices for disclosing information from human sources with legal obligations of confidentiality or privilege are essentially covered by the same laws and policies that regulate the disclosure of human source information more generally in the Victorian criminal justice system.
Police, as part of the prosecution, play a vital role in ensuring that criminal proceedings are conducted fairly. They have several well-defined legal duties to ensure this occurs, including the duty of disclosure. In Victoria, the duty of disclosure comes from a combination of legislation (primarily the Criminal Procedure Act 2009 (Vic)), common law and professional guidelines. This duty extends to police because prosecuting authorities are not responsible for investigating matters and can therefore only act on the material police bring to their attention.
The duty of disclosure requires police to give prosecutors and accused persons all material they are aware of that is relevant, or potentially relevant, to an accused person’s case. This includes material that may undermine the prosecution case and help the accused person. The duty of disclosure continues even after proceedings related to a prosecution have been finalised.
There are some exceptions to the duty of disclosure, one of which is material protected by PII. The prosecution may refuse to disclose material on the basis of PII when, for example, disclosure of the material is not in the public interest because it may place a person in danger or reveal the identity of a human source. In Victoria, the police, not the prosecutors, are responsible for making PII claims, which are then determined by the courts.
The Commission heard of several challenges associated with the ability of police to fulfil their disclosure obligations, including:
- the complexity and volume of material police obtain in many investigations and their ability to review this material
- the difficulties associated with determining whether material is relevant and needs to be disclosed
- the additional difficulties where the investigation relies on information from human sources and may be subject to PII.
The Commission considers that there is scope to strengthen, clarify and reinforce the legislative regime governing police disclosure obligations. It recommends the introduction of a statutory duty for police to provide the DPP with material and information that might be relevant to either the prosecution or the accused person’s case; to notify the DPP of the existence and nature of any material subject to a claim of PII, privilege, legislative immunity or publication restriction; and, when requested, to disclose that material and information to the DPP. It also recommends the introduction of a legislative requirement for Victoria Police to complete a disclosure certificate, to remind officers of their important disclosure obligations and ensure they have disclosed all relevant material to prosecuting authorities in an accountable and transparent way. The certificate would need to describe relevant material not being disclosed due to a claim of PII or some other restriction or exception.
It is important that key stakeholders work together to develop procedures that support Victoria Police to navigate and make decisions about complex disclosure and PII issues. The roles of police and prosecutors are interdependent, and effective communication and consultation is critical to the proper functioning of the criminal justice system.
The Commission recommends that the DPP and Victoria Police jointly establish clearer and more transparent protocols and procedures to facilitate early and effective discussion of complex issues relating to disclosure and PII claims. These protocols and procedures should:
- ensure Victoria Police has adequate and early support, including legal advice, when making complex decisions about relevant and disclosable information that may be subject to PII
- tailor the level of support provided to Victoria Police so that greater support is provided in respect of complex PII and disclosure issues
- ensure the DPP’s independence is maintained.
Victoria Police advised the Commission that it is in the process of implementing a range of improvements to disclosure processes and practices, including additional training for officers and a pilot program involving the use of dedicated disclosure officers. While these initiatives look promising, they are in their early stages. The Commission recommends that they be independently reviewed to ensure they are effective and able to achieve sustained and long-term improvements in Victoria Police’s disclosure practices.
Organisational improvements also depend on effective leadership, governance and cultural change. To support this, the Commission recommends the establishment of a disclosure governance committee consisting of members from Victoria Police, the Victorian Office of Public Prosecutions and other relevant stakeholders, with responsibility for identifying and monitoring systemic disclosure issues, and overseeing the development and implementation of reforms to improve disclosure practices.
Legal profession regulation
Lawyers have considerable power and authority when representing a client. They have expert knowledge about the law and legal system, and access to their client’s confidential information. Their advice and actions can have a direct and significant influence on their client’s wellbeing, the outcomes the client is able to achieve, and the client’s future. When lawyers deliberately betray their client’s trust or act in ways contrary to their client’s interests, it can have a devastating impact on the client. It is also, as this inquiry has shown, apt to undermine both the integrity of the criminal justice system and public confidence in the legal profession.
Legal profession regulation exists to protect consumers and the public, and to support the proper administration of justice. Victoria’s legal profession regulatory framework consists of legislation, the common law, professional conduct rules, support services and ongoing education. These elements work together, requiring lawyers to demonstrate high standards of ethical and legal practice. When lawyers fail to uphold these standards, complaint, investigation and disciplinary mechanisms act to correct and deter the behaviour.
Due to the limits of the Commission’s terms of reference, it has not undertaken a wholesale review of legal profession regulation in Victoria. Rather, it has focused on the specific aspects of legal profession regulation that support the ethical conduct of lawyers, and related issues raised by stakeholders the Commission consulted.
While Victoria’s legal profession regulatory framework has changed significantly since Ms Gobbo practised as a lawyer, there is scope to further strengthen and improve aspects of it.
It is important that lawyers fully understand the duty of confidentiality they owe to their clients and their responsibility to maintain appropriate professional boundaries. It would be beneficial to clarify and harmonise these aspects of the professional conduct rules for solicitors and barristers.
Legal ethics education is integral to supporting lawyers’ understanding and application of their ethical duties and obligations in practice, as well as their ongoing professional development. Embedding legal ethics education in lawyers’ continuing professional development, including through the use of practical, scenario-based learning, would support them to understand the common ethical issues that can arise in legal practice and enhance their skills to manage those issues. Strengthening awareness of and access to the various ethical supports that are available to lawyers is also important.
When a complaint is made about a lawyer’s conduct, it is critical that the processes for investigating it are not only independent, but also seen to be independent. Under the current model, the Victorian Legal Services Commissioner is responsible for the receipt, management and resolution of complaints about the professional conduct of lawyers. The Commissioner delegates some of their powers regarding the conduct of barristers to the Victorian Bar, including the power to investigate complaints against barristers. While this approach has benefits—including the ability to draw on the practical insights and subject matter expertise of the Victorian Bar regarding accepted standards of legal practice and advocacy—it risks a public perception that the model lacks independence, given that another function of the Victorian Bar is to advocate on behalf of its members. Recognising the importance of public confidence in all branches of the legal profession, the Commission recommends that the Victorian Legal Services Commissioner holds sole responsibility for investigating complaints about barristers, so that there is a single, consistent, independent approach to the management of all complaints regarding lawyers in Victoria.
The Commission has also carefully considered the potential benefits and risks of a mandatory requirement for lawyers to report suspected misconduct by other lawyers. While some submitters raised legitimate issues and concerns, the Commission considers that the introduction of such a mandatory reporting requirement would deter misconduct by lawyers, encourage their adherence to high ethical standards, strengthen public confidence in the legal profession, and bring it into line with other professions and fields where mandatory obligations apply, including the health sector and policing.
The Commission also recommends reforms to strengthen the rigour of the legal admission process and to support access to independent legal representation for people in police custody.
Finally, in light of the events that led to this inquiry, the Commission recommends that legal profession regulators and professional associations work together to develop communications material for the public about lawyers’ professional and ethical obligations, with the aim of restoring and maintaining public confidence in the legal profession and the broader criminal justice system.
Issues arising during the conduct of the Commission’s inquiry
The Commission had both an investigative task, focused on examining events that happened many years ago, and a policy reform task, focused on assessing current policies and processes and identifying ways that they could be improved. Both tasks required the Commission to use its powers under the Inquiries Act and gather information from a range of sources, including from Victoria Police and other law enforcement agencies, statutory bodies and office holders, the courts and government departments.
The Commission’s inquiry involved highly sensitive matters that are not typically subject to public scrutiny. There are many good reasons for this. Keeping the identities of human sources confidential is critical to their safety, and not revealing specific details of covert police methods helps to ensure police are not hindered in their efforts to disrupt, prevent and investigate crime. Some sensitive information relevant to the inquiry was specifically covered by the Witness Protection Act 1991 (Vic) or court suppression orders, which prevented the Commission from publishing the information or referring to it in public hearings.
Accordingly, the nature of many matters examined by the Commission created unavoidable obstacles to accessing, using, sharing and publishing certain information. To a significant degree, the Commission was able to manage and resolve these issues. In many cases, it developed protocols and arrangements that enabled access to, and publication of, relevant information in a way that minimised the legal, operational and safety risks.
As the Inquiries Act is relatively new, having commenced in 2014, this was the first Victorian royal commission that relied heavily on the investigative and coercive powers the legislation provides. This meant the Commission had to tackle novel issues relating to the practical operation of the legislation and its interaction with other areas of law.
The most significant challenge for the Commission related to information subject to PII claims. Under the Inquiries Act, it is a reasonable excuse for a person not to comply with the Commission’s power to compel the production of documents on the basis that the information is subject to PII. This legislative exception, combined with the volume of material over which Victoria Police claimed PII and the broad nature of many claims, complicated and delayed the production, review and publication of material. This in turn hindered the Commission’s ability to inquire into subject matter relevant to its terms of reference. Accordingly, the Commission recommends amendment of the Inquiries Act to remove the ability to refuse production of material to a royal commission on the basis that the information is subject to PII.
Other potential reforms to improve and modernise the operation of the Inquiries Act include:
- clarifying provisions that exempt certain bodies and persons from the requirement to comply with the coercive powers of a royal commission
- creating a power to compel a person to provide a written statement within a specified timeframe
- enhancing the flexibility of requirements regarding service of notices to attend and produce
- modernising requirements for publishing non-publication or suppression orders made by royal commissions and boards of inquiry.
The Commission faced considerable challenges in relation to document production. In particular, Victoria Police’s frequent failure to produce documents in a timely and comprehensive manner—together with its at times narrow view of, and obdurate approach to, the scope of notices to produce—unnecessarily diverted the Commission’s resources and impeded the inquiry. Consequently, at the time of finalising the report, the Commission cannot be certain that it received all information from Victoria Police that was relevant to the inquiry. The Commission’s findings and recommendations, and the submissions of Counsel Assisting, are based on material that was available to the Commission at the time of writing.
Work beyond the Commission
Because the conduct of Ms Gobbo and Victoria Police has had significant consequences, the Commission has made wide-ranging recommendations directed to various agencies across government, the justice system and the legal profession. Its recommendations fall into three broad categories:
- referrals for investigation to determine whether further action should be taken in relation to the conduct of Ms Gobbo and current and former Victoria Police officers, including prosecution of criminal offences or disciplinary action
- processes to ensure that all potentially affected persons receive timely disclosure of information relevant to their cases
- reforms to laws, policies and procedures governing the use of human sources, disclosure of information in criminal proceedings, and aspects of legal profession regulation.
The Commission considers that, for various reasons, it would be problematic or challenging for the conduct of Ms Gobbo and Victoria Police officers to be examined by existing investigative authorities; that is, Victoria Police or IBAC. Instead, it recommends that the Victorian Government establishes a dedicated Special Investigator with all necessary powers to investigate potential criminal conduct on the part of Ms Gobbo and relevant current and former Victoria Police officers, and any disciplinary breaches by relevant current Victoria Police officers. Like IBAC, a Special Investigator would be separate from and independent of Victoria Police. Unlike IBAC, however, a Special Investigator would be able investigate the full spectrum of conduct by Victoria Police officers and Ms Gobbo.
The Commission has also made recommendations to facilitate the Special Investigator’s access to the Commission’s records.
Finally, the Commission recommends the establishment of two key mechanisms to oversee the implementation of its recommendations:
- a cross-agency taskforce to drive and coordinate the careful, effective and timely development and implementation of the recommendations (Implementation Taskforce)
- an independent monitor to assess and report on the status and adequacy of implementation, and to engage closely with the Taskforce as reforms are developed, implemented, embedded and completed (Implementation Monitor).
The Implementation Monitor should report annually to the Attorney-General, or more frequently as needed, on the progress and adequacy of implementation. The Attorney-General should report annually to the Victorian Parliament until implementation is complete.
Reviewed 07 December 2020